Shining a bright light into the dark corners of the shadow-world of literary scams, schemes, and pitfalls. Also providing advice for writers, industry news, and commentary. Writer Beware is sponsored by the Science Fiction and Fantasy Writers of America, Inc.

October 28, 2011

Recently, a consortium of university libraries called HathiTrust decided to make more than one hundred digitized books available as e-books to the universities’ communities because the books were “orphans,” works for whom the rightsholders could not be located after a diligent search.

There is clearly a disconnect between HathiTrust and commercial writers, very handily illustrated by Duke University Scholarly Communications Officer Kevin Smith’s condescending open letter to J. R. Salamanca, author of The Lost Country, a novel originally published by Simon and Schuster in 1958, and made into the movie Wild in the Country, starring Elvis Presley, in 1961. The book was one of the “orphan works” included in the HathiTrust’s list. Within days, the Authors Guild had located Mr. Salamanca, and it wasn’t long before he was signed onto an amended complaint.

Librarians complained that this was just a publicity stunt, and it was, but it represented much more, and cuts to the heart of authors’ problem with what happened, because it showed that librarians could regard their search for the rightsholder of a work as diligent and not be even remotely so from an author’s point of view.

“Due diligence” has come up repeatedly as the minimum standard for a rightsholder search before a work could be declared an orphan, and many authors have conceded that it might be okay to allow limited use of a work if no rightsholders could be found after a truly diligent search. (See SFWA's White Paper on Orphan Copyrights.) One of the expectations of a truly diligent search for rightsholders is that it would be conducted by someone who understands publishing and is able to search intelligently. This appears not to be the case with HathiTrust’s search, and is probably the underlying cause of the problems they encountered.

First, and most important, there’s evidence that HathiTrust was not searching for the authors themselves, but assumed that the publishers would be the rightsholders of these works. In response to an author comment that for a work published in 1958, the author would almost certainly be the only rightsholder because publishing contracts from the fifties don’t mention e-book rights, Kevin Smith comments that “The issue about who has the right to reproduce and distribute a digital copy of a work is usually a matter of interpreting the scope of the contractual assignment of those basic reproduction and distribution rights.” While this may be true in academic publishing, it’s certainly not the case in trade publishing, in which contracts explicitly lay out reproduction and distribution rights. The obvious conclusion is that HathiTrust didn’t find Mr. Salamanca because it wasn’t looking for him.

If true, this is very troubling. There is case law indicating that the author retains all rights that have not been explicitly assigned to a publisher (the Tasini case), and a preliminary finding by a judge that says that pre-electronic rights contracts do not give publishers e-book rights simply because the contracts specified book rights (Random House, Inc. v. Rosetta Book LLC). While the issue is by no means resolved (unfortunately, Rosetta Books settled with Random House, and the actual dispute wasn’t litigated, so we don’t know for sure how the case would have turned out), that’s surely enough case law to indicate that for out-of-print works, the author is likely to be the rightsholder that HathiTrust (and projects like it) should be looking for.

There’s another thing that points to the author being the rightsholder of out-of-print books, even if one concedes that the precedents above aren’t conclusive. Almost all commercial book contracts include a reversion clause that allows authors to reclaim all of their rights and terminate the contract after the book has gone out of print. Considering that a book such as The Lost Country has been out of print for at least four decades, wouldn’t it be reasonable to assume that a canny author like Mr. Salamanca had reverted his rights?

It would be extremely helpful if the folks at HathiTrust would reveal the steps they took to try and locate the rightsholder(s) of The Lost Country. What assumptions did they make? Whom did they talk to, if anyone? What references did they consult? Most important, what do they think a diligent search is? One thing is quite clear, and that is that a diligent search requires a diligent searcher. It can’t be automated. In many cases, it’s going to take time and effort and detective skills. And asking the publisher will only be one step in the process, which must involve looking at the publishing contract, and ultimately must include consulting with the author or his/her estate.

The good news is that there are many resources available to locate authors, both on the Internet and elsewhere. As the Authors Guild blog demonstrated, crowdsourcing works to some extent, but even a thoughtful Google search can produce a remarkable number of leads and, in some cases, an email address or phone number.

When the AG publicized the list of potential orphan works in HathiTrust’s hopper, one name jumped out at me: Fletcher Pratt. Although the book in question was one of his historical works, Pratt wrote some fine science fiction, both solo and in collaboration with SFWA Grand Master L. Sprague de Camp. I figured that would be a good test case, so I started investigating.

As it so happens, several years ago, SFWA initiated a project to locate contact information for the estates of deceased science fiction and fantasy writers. Bud Webster, who has deep roots in the SF pro and fan communities, heads up the project. Pratt died in 1956, but there was no contact information for Pratt’s literary estate in SFWA's existing Estates Database. Bud put the word out among his contacts, and Orion CEO Malcolm Edwards came back with a name and address for Pratt’s heir, the daughter of Pratt’s wife Inga with her second husband. Case closed? Not quite…we’ve been unable to find a phone number or e-mail address that we could use to confirm her status, but the search is ongoing.

The moral of this story is twofold: 1) sources such as SFWA’s Estate Project should be consulted as part of any diligent search, and 2) copyright is people. Finding the heir(s) of an author can be very complicated, but that doesn’t mean a work is an orphan simply because several generations have passed since the author died.

That’s where the definition of diligence comes into play; if the trail peters out and the author or heirs can’t be found after a truly diligent search, then perhaps it’s time to declare the work an orphan. But a truly diligent search can’t economically be made for hundreds, if not thousands, of works; unless HathiTrust’s resources are very large, they are going to have to prioritize among their choices and be content with a slow, painstaking process. No doubt they would say that this defeats the whole point, which is based on Google’s notion that a thousand random books are worth more than a few carefully chosen ones. Books from academic publishers in which copyright was assigned to the publisher will undoubtedly be easier to trace. But if the orphan work concept is to have any validity at all for commercially published works, slow and painstaking is HathiTrust's only choice.

Michael Capobianco is the author of one solo science fiction novel, Burster (Bantam 1990), and co-author, with William Barton, of the controversial hardcore SF book Iris (Doubleday 1990, Bantam paperback 1991, Avon Eos 1999), Alpha Centauri (Avon, 1997), and the critically acclaimed near-future novel Fellow Traveler (Bantam, 1991). Capobianco served as President of Science Fiction and Fantasy Writers of America (SFWA) from 1996-1998 and 2007-2008. He received the Service to SFWA Award in 2004 and is currently on SFWA's Board of Advisors.

October 25, 2011

A month ago, I blogged about the troubles at Aspen Mountain Press, whose authors report nonpayment of royalties, contract breaches, delayed publication schedules, and other problems; and whose senior staff resigned en masse in early August.

Usually, when this kind of turmoil engulfs a publisher, authors and staff members are reluctant to say too much, and the details don't become widely known. But recently, in a searing blog post, AMP's former head editor Celina Summers broke her silence, and went public with the whole sordid story of AMP's demise.

Celina writes,

My first indication that anything was wrong came when one of my authors at [AMP imprint] Aurora Regency—a writer who was in my writing group, who was a dear friend, who was someone whose integrity I trusted absolutely—wrote to me in concern because she hadn't received her royalties.

When it became apparent that this was more than an isolated problem, AMP staff attempted to intercede with the owner, Sandra Hicks, to get things straightened out. Ultimately, the owner turned the running of the company over to staff (who were themselves owed substantial amounts of money in back pay), and brought in a bookkeeper to straighten out the royalty mess. But the mess was worse than anyone imagined.

Hundreds of emails in all the AMP accounts, gone unanswered and unopened from authors and staff. The customer service email account alone had over 500 unanswered emails over the previous eight months. That took two people working eight hours to resolve—and in the process, we discovered a frighteningly large number of AMP books that had serious formatting problems for a long time.

Authors who were contracted and never heard back from the company, leaving their books unpublished and their rights tied up. I found books from two years previously that were still stranded by AMP, the authors begging to just get a response from somebody…anybody.

The royalties were such a mess that the bookkeeper, Kerry Mand, elected to concentrate on just getting that month's royalties out and working on some of the most pressing cases before working backwards through the books and auditing a year's worth of royalty spreadsheets and reports--a course of action I agreed with. We discovered that in previous months, only portions of the royalties had been paid at any given time.

Celina describes the staff's all-out efforts to get things back on track. And it looked as if they were succeeding. Correspondence was answered, books were uploaded, release schedules were established, and the royalty accounts were untangled.

The accounts were then sent to Ms. Hicks for payment. But within days, staff began hearing from authors who hadn't received their royalties. When Ms. Hicks was confronted about this, Celina reports,

...she said that to her knowledge, [payments] all had been [made]. We were online IN the bank account and Paypal, trying to match authors (and pen names) to amounts to see who'd went unpaid. And as I asked her about a specific author, we watched the payment go out from that account. Then she texted me back each time and said that I was mistaken, that author had been paid.

Up until that moment, I believed that all the problems at AMP were unintentional, and that there wasn't a chance of dishonesty on the part of the owner. But that, when considered along with everything else, made me suspicious for the first time. After that, we couldn't believe Ms. Hicks when she told us she'd paid for something. So we began to monitor the bank account...It was then that we starting noticing some peculiar activities in the AMP bank account.

The owner was using the business's bank account for personal expenses.

Staff begged Ms. Hicks to separate her personal expenses from the company's. She refused. Believe it or not, the story goes downhill from there, with scheduled books left unpublished, rights reversion requests refused or ignored, threats from Ms. Hicks, authors chastised and banned from discussion loops, and royalties and salaries still unpaid. All of this, apparently, has been complicated by Ms. Hicks' personal and health issues.

There has been some positive movement recently. In subsequentposts, Celina notes that a few AMP writers have received reversion letters. More important, the AMP website is down--and per the AMP contract, if the company suspends operations for 60 days or more, all rights automatically revert to authors. Other problems, however, including outstanding royalty payments, continue to be unresolved.

In conclusion, Celina writes:

Publishers need to be held accountable for their actions. It is time now for Aspen Mountain Press to pay what they owe.

Give the authors their rights back.

Give the authors an internal audit of the books.

Pay the authors and staff what they are owed.

And shut the doors on a one-time great little publisher that is now the biggest cautionary tale of all.

A cautionary tale, indeed.

For every writer and editor caught up in a disaster like this, the situation is unique. But for us at Writer Beware, it's a sadly familiar story. Small press publishing is inherently risky--for publishers as well as for authors--and while the situation at AMP is uglier than many, it's also far from unusual. Small presses tend to be much more directly tied to the personal lives and resources of their owners than bigger companies are, and that makes them uniquely vulnerable to not just to money problems, but to logistical and personal ones as well.

The problem is, while some small presses reveal their iffiness on initial research, or demand a wait-and-see approach because they're untried start-ups, there's no way to predict the implosion of an apparently established, active publisher like Aspen Mountain Press. No matter how careful you are, some risk is inevitable. Fortunately, there are ways to protect yourself--some of which are suggested in my blog post, Precautions for Small Press Authors, and also in the brand-new Small Press page at Writer Beware.

Over the past few weeks, a number of AMP authors have come forward with their stories. Here are some of them:

October 18, 2011

More than that, however, it highlights something that every writer signing a publishing contract needs to be aware of: the importance of reversion clauses (which publishers often like to keep as vague as possible so they can hold on to rights for as long as possible), and the problems that can arise even when authors and their agents re-write open-ended reversion clauses to make them more precise.

This post was originally published at Doranna's blog, where an active conversation is ongoing in the comments thread.

When hikers Dayna and Eric find a young woman naked, terrified, and speechless, they're sure she's the victim of foul play. But the truth is much more shocking: she isn't human at all. She's Dun Lady's Jess, a horse transformed into this new shape by the spell that brought her and her rider, to whom she is utterly devoted, into this world.

Possessed now of human intelligence but still a horse deep inside, Jess desperately searches this world for her master and rider, using her fiery equine spirit to take on human idiosyncracies--and human threats.

Dun Lady's Jess is my heart book—my first book. A fantasy, it was first published by Baen in 1994, and in 1995 it won the prestigious Stephen Tall/Compton Crook Award for Best First SF/F/H of the year. It grew two sequels, and it stayed in print for a good long run—but eventually, some years later, it fell off the shelves and the rights reverted to me.

Halfway through the next decade, I was invited by a delightful editor to reprint the book through the new Star Ink imprint of the Canadian publisher Fitzhenry and Whiteside. We had a wonderful time with the new edition, giving painstaking attention to the details large and small. It became stalled in production, however, and by the time it was released, the editor had chosen to part ways with the publisher. Eventually the book was released under Fitzhenry and Whiteside's Red Deer Press line.

The reversion clause for Dun Lady's Jess reads:

"16.(a) If the Publisher fails to keep the Work in print *through regular trade channels* and for sale and written demand from the Author declines or neglects to reprint it within six (6) months thereafter and to offer it for sale, or after two (2) years from the date of the first publication the Publisher wishes to discontinue publication of the Work and gives three (3) months' notice to this effect to the Author in writing."

The part between asterisks? My agent and I added that to the boilerplate, because the clause as it stood was far too open-ended. The new phrase was approved and initialed by both myself and Richard Dionne, for Fitzhenry and Whiteside.

(The part right after the asterisks? Yes, it seems to be missing a word—probably "upon." But that's part of the boilerplate.)

The book was published in November 2007, although the U.S. distribution didn't take place until April 2008. By spring of 2010, it was evident, through royalty reports, that the book wasn't being placed on the shelves anywhere (that is, "regular trade channels"). For a couple of years now, it's sold only a handful of copies per year, and has slowly slid off availability via online sources. (see the screenshot below).

But when we asked for reversion of rights, the response shocked us: if I would buy the considerable copies the publisher had sitting in their warehouse, they would revert the book. I have to tell you...it felt like coercion.

We responded that this wasn't possible, and reminded them that they naturally had the ability to sell their remaining stock should the rights to the book be reverted. In other words, for them, nothing would change.

But they didn't respond to that email, nor to the one after that, or the one after that, or to the phone call by the book's original editor with that line, or—after we'd let the situation sit for a year—to the query after that.

We sent screenshots of the book's lack of availability and its failure to appear in any distributor warehouse. It's in the publisher warehouse alone—which does not equal being available through regular trade channels. We also sent a PDF of the relevant contract page with the initialed changes to their boilerplate. This material went out return receipt—and finally, we received a promise to review the situation and get back to us in a week.

Dun Lady's Jess: The warehouse listing. Unlike books that are available through regular trade channels, this title is stocked only in the Fitzhenry and Whiteside warehouse

This did not happen.

After another nudge—which included the reminder that the publisher could continue to sell warehoused copies in their usual fashion, as well as a reminder of the boilerplate changes--we were finally told: "This book is in stock, on sale on our website, it continues to sell albeit in lesser quantities. [my note: yes, a handful of copies a year] We have some 1,600 in stock with no reason to revert rights. "

How about because it's a contractual obligation?

Finally, I went to SFWA GriefCom. You may not have heard much about this committee; when GriefCom mediates a dispute, the parties involved maintain a strict nondisclosure; no one's dirty laundry is aired. And because they see a high level of success, that means you see very little dirty laundry and very little about GriefCom.

In this case, the request from GriefCom to Fitzhenry and Whiteside was simple: Revert the book per the contract obligations, or provide proof that the book is available via regular trade channels.

It took a week of trying for GriefCom to connect with Richard Dionne, at which point we were given a promise that Red Deer would provide proof of distribution within a week.

This did not happen.

After three weeks of silence and unreturned phone calls, GriefCom sent a different kind of request, giving Red Deer forty-eight hours to either revert the book or provide proof that it was being sold via regular trade channels, and asserting that after that, I would be forced to take additional steps.

Early the next day, I heard from the GriefCom chair that he had received a phone call, and that the unidentified caller took him to task in no uncertain terms--claiming harassment, declaring there would be no reversion on the title, and warning that she would "report" us to [prominent Canadian SF writer #1] and [prominent Canadian SF writer #2]—all before hanging up on him.

We took this as an indication that the publisher no longer wishes to interact with GriefCom.

Finally—knowing that truly, no one wants a big dramafest, I emailed Richard Dionne and made the same request: Please send either the reversion or the proof that Dun Lady's Jess is being sold via regular trade channels, and please do so within the next three business days.

This did not happen.

I don't have a lot of options left, but I do have some. For one thing, I have this: I can break the silence that protects Fitzhenry and Whiteside from the consequences of their actions—a silence I've kept for a year and a half. And I can do it to warn everyone possible, via the big wide Internets: This is my documented experience with this publisher. We have a contract clause that was approved and initialed, but is not being honored. A critical contract clause—one that protects my interests in my book per the agreed-upon terms. A contract clause that is of utmost importance these days, when publishers and writers are scrambling to negotiate shifting terms and a shifting industry.

A contract clause no writer should take lightly.

Meanwhile, I still want my book back. I still want Fitzhenry and Whiteside to honor the contract they signed. Contracts are not a thing of convenience, to be ignored when a publisher pleases. "Make me," isn't in a professional lexicon...or shouldn't be. If you feel the same, I hope you'll pass this warning along.

Doranna Durgin responded to all early injunctions to "put down that book/notebook and go outside to play" by climbing trees to read and write. Such quirkiness of spirit has led to an eclectic publishing journey, spanning genres over 30 novels to include mystery, SF/F, action-romance, paranormal, franchise, and a slew of essays and short stories.

Q and Q has learned of multiple instances of unpaid royalties stretching back to 2008. The company has also shed staff in recent months and disconnected its Montreal phone line. President and publisher Alison Fripp now intends to run the business from her home, according to one author who has been in direct contact with the company head...

Several authors who spoke to Q and Q on background described an organization in which royalty statements were consistently late and payments often had to be compelled, if they were forthcoming at all. Requests to have rights reverted for non-payment of royalties were ignored or rejected.

One author, who asked not to be named, said that, as of December 2009, she was owed $1,100, and has yet to receive full payment or an accurate accounting of royalties that have since accrued.

The problems outlined by PW and Quill and Quire echo recent complaints received by Writer Beware from Lobster Press authors. We also received very similar complaints in 2006, at which time the company reported that it was in creditor protection (according to PW and Q and Q, the company entered creditor protection in 2003 in order to re-structure; it's not clear to me whether it was still in creditor protection in 2006, or had emerged and then re-entered).

The Writers Union of Canada has filed a grievance against Lobster Press "pertaining to a clause in some author contracts that grants the publisher partial ownership of a work upon the reversion of rights to the author."

Writer Beware began getting complaints about small press Dailey Swan Publishing about a year ago, from authors who reported payment problems, delayed publication dates, delayed reprinting dates, and refusal to revert rights despite non-availability of books. (I was already suspicious of this publisher due to its penchant for working with marginal and questionable agents, so the complaints weren't a complete surprise.)

Other signs of trouble included long shipping times (4-6 weeks to 2-6 months) on Amazon and inconsistent availability with online vendors, as well as a plea for funding at an entrepreneur-investor matching website.

On October 2, Dailey Swan authors received an email from the company's owner, Casey Swanson, informing them that due to unsold inventory and crushing debt, a bankruptcy filing was imminent. (It's actually quite rare for troubled small presses to file for bankruptcy; most simply close up shop and disappear.) No word about rights reversion or royalty payments due.

Then, on October 12, another email, and a surprise: Dailey Swan wasn't closing, it was transforming! Instead of "traditional" publishing, it would be "changing our publishing format to a coop type publishing venture." In other words, authors will now have to pay fees.

According to the typo-ridden contract addendum attached to the email (which authors can sign and send back if they want to participate, or refuse if they want return of their rights), authors who buy into this new business model will bear the expense of the "first print run" of 1,000 copies, at an average cost of $1.50 to $3.50 per copy (Dailey Swan will pay for any subsequent print runs), plus cover artwork at an average cost of $1,000 (optionally, authors can provide the artwork themselves).

Of the 1,000 copies, 100 will go to the author, 20 to the publisher, 350 to a program that sends books to independent booksellers for review, and 530 to general distribution. Beyond any questions about the wisdom of paying up to $4,500 for publication, this presents the traditional dilemma of the vanity-published author: how to know for sure that all the copies you paid for were actually printed.

But that's not all. To sweeten the deal, the addendum promises that "Each author would receive common shares of Dailey Swan publishing [sic], Inc stock at the rate of $2.00/share." Really? How many shares? Does "receive" mean free, or will authors have to buy them? $2.00 per share seems a bit high for a company that a week ago reported itself to be on the verge of banruptcy. More to the point--is Dailey Swan even registered to issue or sell company stock? I'm not an expert, but I couldn't find any evidence that it is.

To date, there's no sign of these upheavals, or of the changed business model, at the Dailey Swan website. The company still resembles a traditional publisher, and it is still open for submissions.

October 11, 2011

It's been a year since I first blogged about serial plagiarist "Iron" Dave Boyer (among many other names), whose prolific pilfering of other writers' words has become something of an Internet legend, especially in the horror community, where he concentrates his efforts.

Now, thanks to activism by Ferrell Rick Moore, one of Boyer's first victims, the Attorney General in Boyer's home state of Indiana is investigating whether to pursue Boyer on consumer fraud charges.

Here's where we can help. From Rick's blog (the bolding is mine):

In the past, the only recourse a writer had was to file an expensive, time consuming and ultimately unproductive lawsuit against creeps like Boyer who then claim they're bankrupt. Help me change that. Tell the Attorney General's office for the State of Indiana how important it is for this plagiarist publisher to be subject to the same penalties as any other crooked business. We want him pursued under Consumer Fraud regulations at their cost, not ours. He's defrauding consumers by selling them our stuff with his name on it.

Here's where to send your respectful but firm letters and or emails of support, and be sure to include the File Number File No. 10-CP-62157:

October 3, 2011

Some of you may be aware that for the past few months, a group calling itself The Write Agenda has been attempting to wage a disinformation campaign against Writer Beware and other anti-scam activists.

(Note: We're expecting that at least some of the data we're linking to in this post will disappear after the post goes live, so we've taken a bunch of screenshots and, rather than clutter up this post with images, set up a special Screenshots page to host them. Be sure to click the links to get the full picture--you don't want to miss it!).

The Write Agenda is an anonymous group that claims to be

a group of individuals, writers, want-to-be authors and inquisitive wordsmiths that have become “literally” numb from reading the numerous author help related blog posts. Many of these postings are subjective and do not offer any substantial documentation regarding purported claims regarding publishers and other industry professionals. In addition, many of these sites have become nothing more than complaint boards that disseminate speculative claims without any substantiation. We do not discount the validity of some claims made. However, we want to question both sides of an issue and to assist other authors in making informed decisions. If a fact is proven true we’ll support it. If a claim is twisted, slanted, incomplete, not updated (retracted) or smells like innuendo . . . we’ll challenge it.

Sounds admirably even-handed, doesn't it? Unfortunately, providing reasoned discourse to assist in the formulation of balanced choices is not what The Write Agenda is all about. TWA's real agenda is to harass, discredit, and intimidate just about anyone who speaks out about literary scams, or supports anti-scam activities.

However, we've become concerned by the way The Write Agenda's venom seems to be spilling beyond the "watchdogs" and into the wider writing and publishing community. TWA's rapidly growing "boycott list" now includes many writers who have nothing at all to do with Writer Beware or WB's activities; one writer is on the list for nothing more than the crime of having Victoria as a guest on her radio show (she blogged about TWA's attempts to hijack the interview even as it was being conducted); others are included, apparently, simply because they're SFWA members. Recently, TWA posted hundreds of one-star reviews of "boycott" authors' books on Goodreads (see #3 on the Screenshots page for an example); these reviews were flagged by Goodreads as spam and removed, but not before they prompted some angryresponses by targeted authors.

The bottom line: The Write Agenda is not a credible group--not just because of the trollish obviousness of its agenda, but because whoever is behind it isn't brave enough to publicly own their words. So if you're alarmed by finding your name on its "boycott" list, or by its so-called B.A.D. Project (which supposedly disseminates the list to libraries and bookstores), or if its one-star reviews show up again on your books--don't be concerned. In fact, consider it a badge of honor.

In addition to buffing your badge, Writer Beware advocates could also let The Write Agenda know they're not going to put up with this kind of childish smear campaign. If you run across these absurd allegations, or others in the same vein, don't let them stand unchallenged. Link to this post, or blog about the truth, or post messages so that those who don't know Writer Beware's reputation as advocates for authors don't have to see just TWA's ridiculous rants.